Two weeks after the Supreme Court abolished the death penalty in the United States with the landmark Furman v. Georgia decision, on June 29, 1972, the Democratic Party included in its platform a condemnation of capital punishment as “an ineffective deterrent to crime.” It declared that the sentence, often “unequally applied,” amounts to “cruel and excessive punishment.”
Ten subsequent party platforms either failed to mention, or supported, death sentences—until this year. In June, the party unanimously adopted an amendment supporting the abolition of the death penalty, using almost identical language from 1972.
The call for abolition, which is to be officially adopted in late July at the party convention in Philadelphia, represents the first time the Party has unanimously supported its abolition, the platform writers declared.
But the Democratic Party’s round trip on capital punishment is still not complete.
Hillary Clinton, the presumptive Democratic nominee for president, supports the death penalty for “particularly heinous crimes.”
Her views still evoke to some extent the Democratic Party’s 1996 “law and order” platform that her husband rode to his second-term victory. One plank in that platform directly called for “expanding the federal death penalty.”
In a revealing response to a question during one of the primary debates this spring, Hillary argued that the federal death penalty should be “held in reserve” to deal with offenders convicted of serious crimes connected with terrorism.
Even that qualified support may put her out of sync with the changing views of the national electorate—and Democrats in particular. Public support for the death penalty for convicted murderers has dropped from 78 percent in 1996 to 54 percent, according to a Pew Research Center poll from last year.
Among Democrats the decline is even steeper: 40 percent of declared Democrats polled support the death penalty for murderers, compared to 71 percent in 1996.
“There has been a sea change in public view of the death penalty,” Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit advocacy group which opposes capital punishment, told The Crime Report.
Does it matter? While the death penalty is not the hot-button issue it was a decade or so ago, and is (so far) unlikely to be a make-or-break issue for most voters in November, Clinton’s support for some applications of the death penalty shows that even if she has to buck her own party, the criminal justice reforms she’s embraced this campaign have limits.
That’s not to say her view of capital punishment hasn’t reflected the shifting national consensus.
As she told the debate audience in the Columbus, Ohio town hall last March, “I would breathe a sigh of relief if either the Supreme Court or the states themselves began to eliminate the death penalty.”
Like many national political figures, Clinton has evolved from the “tough on crime” mentality of the late 1980s and 1990s, when being against the death penalty was “political poison,” in the words Dunham.
“You could not hold that position and win a national election,” Dunham told The Crime Report.
“That is unquestionably no longer the case. In fact, [during this year’s Democratic primaries] support for the death penalty had become a political liability.”
But for Clinton, the difference between her views and this year’s platform is uncomfortably personal. During Bill Clinton’s first campaign for the presidency, he made a point of attending the execution of Rickey Ray Rector.
The number of executions reached a peak during Clinton’s presidency in 1999, when 98 prisoners were executed in the U.S. In 2015, 28 prisoners were executed; just 14 have been executed so far this year. And many of those executions take place in just a few states (in 2015, 13 were executed in Texas; 6 in Missouri; 5 in Georgia).
Political observers say the party’s inclusion of language in support of abolishing the death penalty is likely due to the influence of Bernie Sanders, who strongly opposes the death penalty.
“I would rather have our country stand side-by-side with European democracies rather than with countries like China, Iran, Saudi Arabia and others who maintain the death penalty,” Sanders said in a Senate speech in October.
Prof. Laurie Levenson, a law professor at Loyola Law School who has been watching the election to see how candidates talk about criminal justice issues, agrees.
“I think [the platform’s call to abolish the death penalty] probably is Bernie’s influence and I don’t think it’s a bad thing,” she said. “I think the death penalty is a discussion that has to be had and is being discussed in states.”
It certainly is being discussed.
Even states with Republican-controlled legislatures like Utah and Nebraska are talking about abolishing the death penalty. Nebraska’s legislature voted to abolish the death penalty last year, overrode their Republican governor’s veto and the measure is currently on hold until a referendum in November.
Many factors have contributed to the change in attitude toward how the U.S. executes prisoners—among them, the 156 exonerations of death row inmates, the high cost of executions, the shortage of lethal injection drugs and evidence showing the death penalty’s ineffectiveness in deterring serious crime.
Dunham said the “systemic arbitrariness, both geographically and on the basis of race,” as well as “the evidence of tremendous amounts of prosecutorial misconduct,” in death penalty cases have also contributed to changing the picture.
“This is not something new, in the sense that it dropped from the sky. The U.S attitudes on the death penalty are not beginning to change, they have in fact changed. We are in the process of change,” he said.
Hillary’s Justice Agenda
Clinton has embraced what appears to be an emerging nationwide consensus for major changes to the the country’s criminal justice system. The topic of her first campaign speech last year was reforming a system that she has called “out of balance.”
“It’s a stark fact that the United States has less than 5 percent of the world’s population, yet we have almost 25 percent of the world’s total prison population,” she said at Columbia University in April 2015. “The numbers today are much higher than they were 30, 40 years ago, despite the fact that crime is at historic lows.”
She continued: “It’s time to change our approach. It’s time to end the era of mass incarceration.”
Since then, Clinton has expressed support for a number of justice reforms at all levels of government. She’s in favor of: reforming mandatory minimum sentences; body cameras on police officers; restoring voting rights to released prisoners; legislation aimed at ending racial profiling; ending the privatization of prisons; and better national data on officer-involved shootings and deaths in custody.
Clinton admitted during the Ohio town hall debate that her support for the death penalty for special crimes like terrorism was “maybe… a distinction that is hard to support.”
What made her answer especially poignant was that it came in response to a question posed by exonerated death row inmate Ricky Jackson, who asked Clinton how she could support the death penalty when people like him exist.
Conceding it was a “profoundly difficult question,” Clinton said she believed “the states have proven themselves incapable of carrying out fair trials that give any defendant all the rights that defendants should have.”
But to some that has raised questions about her general approach to issues where her views veer to the right of some of the key constituencies she needs next November—not least the millennials who came out in huge numbers for Bernie Sanders.
One commentator for the news site The Intercept, observed that her position “lets her have it both ways while costing her absolutely nothing.”
“[It offers] vague semi-opposition to the death penalty at the state level (for which she would bear no direct responsibility as president), paired with confident support for executions at the federal level,” wrote Liliana Segura. “[That’s] the only realm in which opposing the death penalty could have any practical impact.”
The Clinton campaign did not respond to a request for comment from The Crime Report about her stance on the death penalty, given that the party is calling for its abolition in the party platform; and the issue is not listed in her 1,200-word section on criminal justice on her website.
During the primary season, Clinton was repeatedly challenged on her support for the 1994 crime bill signed by her husband—a bill that many critics say contributed to the mass incarceration problem she now says we need to end.
“I think that it had some positive aspects to it,” she has said of the 1994 legislation, noting for instance the passage of the Violence Against Women Act.
“So…on one side [of the balance sheet] there are some positive actions and changes. On the other side, there were decisions…made that now we must revisit and we have to correct.”
But she has cautiously stayed away from details about whether she would further “revisit” clauses in the original legislation that, for instance, expanded the federal death penalty to 60 crimes, including three crimes (espionage, treason, and drug trafficking) that do not involve murder.
Subsequent laws passed during her husband’s administration took that tough approach even further. The Antiterrorism and Effective Death Penalty Act of 1996 limited appeals for death row inmates.
Levenson described Clinton’s current position as “politically safe.”
“She doesn’t want to take it off the table completely because you hear about these tragedies like Orlando and there’s a lot of public outrage,” Levenson said.
The question that remains unanswered is whether her tough approach to capital punishment reflects strong conviction, or is calculated to capture hardline blue-collar Democrats who are also one of the key swing constituencies this fall.
Levenson points out that Clinton has been able to draw a contrast on other criminal justice issues between herself and the presumptive Republican nominee, Donald Trump, who is “much more of a hardliner.”
While capital punishment appears unlikely to be a “wedge issue” in the election, as Levenson notes, a new domestic terrorist attack could push it back on the national agenda.
Adam Wisnieski is a Hartford-based freelance reporter, and a contributing editor of The Crime Report. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.